In 2012, Li and Ma registered their marriage and later had a daughter. During the marriage, Li had an extramarital affair with a third party Luo, which resulted in Luo becoming pregnant twice.
In January 2017, Li and Ma signed a marital agreement, agreeing to remain mutually loyal to each other in the future. The agreement stipulated that if a divorce was caused by one party’s wrongful conduct such as an extramarital affair, the daughter would be raised by the innocent party; the at-fault party would waive all marital property rights and pay compensation of RMB 200,000 to the innocent party.
After signing the agreement, Li still maintained contact with Luo, who gave birth to a son in July 2017. Li filed a lawsuit with the court for divorce. Ma consented to the divorce and requested that child custody and the division of marital joint property be handled in accordance with the marital agreement.
The court of first instance held that the marital relationship between Li and Ma had indeed irretrievably broken down, and a divorce should be granted.
The provisions on child custody in the aforesaid agreement are void because they involve personal status relations. Ma’s claim to govern child custody and property division entirely according to the marital agreement lacks legal basis. Nevertheless, considering Li’s obvious marital fault, appropriate favor shall be given to Ma as the innocent party.
Taking into account the child’s growth experience, the income levels of both parties, and the source of family property, the court ruled that the daughter shall live with Ma, and Ma shall be allocated 70% of the marital joint property. Both Li and Ma filed appeals against the first-instance judgment. The appellate court dismissed the appeals and upheld the original ruling.
Judges remind that the mutual loyalty obligation between spouses is largely an obligation of emotion and morality. Accordingly, marital loyalty agreements shall be performed voluntarily by the parties, and the law does not confer enforceability upon them. Such agreements cannot serve as the legal basis for dividing marital joint property or determining child custody.
However, when dividing marital joint property upon divorce, the court shall comprehensively consider each spouse’s contributions during the marriage, the degree of the at-fault party’s misconduct, and its negative impact on the breakdown of the marriage, and grant appropriate preferential treatment to the innocent party.
Source: Legal Daily
Legal Comment
There are a variety of factors that may render a marital loyalty agreement invalid. For instance, clauses stipulating the termination of a marital relationship shall have no legal effect; clauses agreeing on the attribution of child custody within the agreement are also legally invalid; and grossly unfair provisions concerning the distribution of marital property are likely to be deemed void by the court.
In this regard, Wumei Law Firm suggests that anyone intending to enter into a marital loyalty agreement must consult a professional lawyer in advance, so as to avoid the entire agreement being ruled invalid merely because individual clauses fail to comply with statutory provisions.
How to Enter into a Marital Loyalty Agreement
Tips from Wumei Law Firm: Key Points You Must Keep in Mind
1.A marital loyalty agreement shall be concluded by both spouses on the basis of equality and voluntary intent, and shall be free from circumstances such as fraud, duress or gross misunderstanding on the part of either party.
A common practice is to set forth an express clause in the agreement, for example:
This Agreement is concluded by both parties on the basis of free will, equality and consensus reached through negotiation. No party is induced by fraud, subjected to duress, or affected by gross misunderstanding.
If the other party raises any contrary claim in the future, it shall bear the burden of proof by submitting corresponding supporting evidence.
2.The contents of a marital loyalty agreement shall not include any restriction or exclusion upon the personal status relationship of either party. For instance, the aforementioned stipulations such as“Once either party breaches the loyalty obligation, the marital relationship of both parties shall be terminated immediately”or“One party shall immediately forfeit the right to child custody”shall not be contained in a marital loyalty agreement.
This is because personal status rights are statutory rights, which may only be exercised through statutory procedures. Such rights shall not be predetermined or altered in advance by private arrangement, nor may any person deprive or exclude others of personal status rights in any form.
3.A marital loyalty agreement does not require divorce as its effective condition. As stated above, a loyalty agreement with lawful formalities and content is legally valid. Where either party breaches the marital loyalty obligation, the other party may claim corresponding rights in accordance with the agreement, and the exercise of such rights is not necessarily premised on divorce.
